Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Teachers' Unions Get Cold Reception at U.S. Supreme Court

Teachers' unions were on the defensive in the U.S. Supreme Court on Monday as conservative justices appeared open to overruling a key precedent that authorizes public-employee unions to collect fees from non-members for collective bargaining.

"The union basically is making these teachers compelled riders for issues on which they strongly disagree," said Justice Anthony M. Kennedy, putting a twist on the idea that non-union members are "free riders" unless they are required to pay for the union's bargaining efforts.

"Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that, but that the union is absolutely wrong in some of its positions," Kennedy added during oral arguments in Friedrichs v. California Teachers Association (Case No. 14-915). "And agency fees ... require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points."

Justice Antonin Scalia, who has expressed concerns about the free-rider problem and thus was perhaps one of the unions' best hopes for getting a fifth vote to join the court's four liberals to preserve the 1977 precedent, Abood v. Detroit Board of Education, did not give the unions much reason for optimism.

"The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition," Scalia said. "Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or [some other] basis? All of those questions are necessarily political questions."

Ten Southern California teachers who refuse to join the teachers' union are asking the Supreme Court to overrule Abood and hold that states may not allow unions to exact such agency fees from public employees who refuse to join. They contend their First Amendment speech rights are offended by such compelled fees.

Abood held that state interests in maintaining labor peace and eliminating free riders justified requiring nonmembers to pay such fees, which are also known as service fees or "fair share" fees.

The case is a high-stakes battle between non-union groups and public-employee unions. (See this Education Weekstory.)

Although the proportion of fee-payers in the 23 states that authorize such fees is relatively small, a decision against the unions would hurt the unions' treasuries. On a cold day in Washington, hundreds of teachers' union members rallied outside the Supreme Court building for their side, while possibly just as many union opponents gathered as well.

"Every year, [the non-union teachers] are required to provide significant support to a group that advocates an ideological viewpoint which they oppose and do not wish to subsidize," Michael A. Carvin, the lawyer representing Rebecca Friedrichs and the nine other teachers challenging the fees, told the justices inside the courtroom.

Carvin was challenged aggressively by the court's liberal bloc—Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. They dissented two years ago when the court ruled that a group of Medicaid home-health workers were really not government employees and could not be forced to pay agency fees to a union representing a majority of such workers in Illinois.

Writing for a 5-4 majority in that previous case, Harris v. Quinn, Justice Samuel A. Alito Jr. wrote at length about Abood's "questionable foundations," but he concluded it wasn't necessary to overrule the 1977 decision in the Illinois case.

On Monday, Kagan, whose Harris dissent was a strong defense of Abood, emphasized stare decisis, the court's principle of overruling its past decisions only in extraordinary circumstances.

"Mr. Carvin, you come here, of course, with a heavy burden," Kagan said. "That's always true in cases where somebody asks us to overrule a decision. It seems to be particularly true here. This is a case in which there are tens of thousands of contracts with these provisions. Those contracts affect millions of employees, maybe as high as 10 million employees. So what special justification are you offering here? "

Carvin said the Abood decision erroneously denied a group of people a fundamental right to be free from supporting speech with which they disagree.

Breyer joined in, saying the court makes many decisions that infringe on individual rights, but "you start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?"

Carvin, a prominent Washington lawyer who has been involved in numerous high-profile cases before the justices, batted back these attacks during his 40 minutes of argument time.

The defense of Abood and agency fees was divided between a lawyer for the state of California; one representing the CTA and its parent, the National Education Association; and one from President Barack Obama's administration.

Edward C. DuMont, the solicitor general of California, said the states and local school districts have important interests as employers when they seek to bargain with a single union representing a class of employees and that union is representing the interests of the non-members as well as members.

Chief Justice John G. Roberts Jr. asked DuMont for an example of an issue subject to collective bargaining that did not implicate public policy issues on which the non-members might disagree with the positions of the union.

Dumont said there were many mundane items that were part of bargaining, such as the mileage-reimbursement rate for business use of an automobile.

"It's all money," Roberts replied. "That's how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money. And the amount of money that's going to be allocated to public education as opposed to public housing, welfare benefits, that's always a public policy issue."

David C. Frederick, representing the CTA and other teachers' unions, told the justices that "overruling Abood now would substantially disrupt established First Amendment doctrine and labor-management systems in nearly half the country."

Frederick argued that where an agency fee system did not exist there was a lack of labor peace.

"In New York City, for example, there were strikes that were occurring all of the time until an agency fee system was put into place, and that enabled the city to better deliver transit services, school services, and the like," he said.

Scalia was mystified by that argument.

"I don't understand that," he said. "I just absolutely don't understand it. Why would agency fees enable the city to do things that it couldn't do before?"

Frederick said an agency-fee system "enables all of the workers to know they are making a shared sacrifice for the purpose of working together to establish a coherent position with their employer."

"You say that, but it doesn't mean anything to me," Scalia said.

U.S. Solicitor General Donald B. Verrilli Jr. also argued on the unions' side, saying that overruling Abood would "disrupt those long-term relationships that have developed over time, and the expectations that have developed over time, and you're going to replace them with a different kind of a situation in which the union is going to have a different set of incentives, trying to ensure that the maximum number of people are willing to pay union fees."

"And the way that the unions are likely to try to do that is through trying to convince employees that they need the union because otherwise management is going to do them harm," Verrilli added. "And I do think that that's a significant problem here for public employer perspective now, in a time of budgetary constraints, when difficult decisions have to be made and cuts have to be made."

A decision in the case is expected by late June.

Photo: Lesa Curtis of Westchester, N.Y., right, who favors union agency fees and is a former president of her union, rallies outside the U.S. Supreme Court on Monday, as the court heard arguments in the Friedrichs v. California Teachers Association case.

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